GRAND CHAMBER. CASE OF SVINARENKO AND SLYADNEV v. RUSSIA. (Applications nos /08 and 43441/08) JUDGMENT STRASBOURG.

Transcription

1 GRAND CHAMBER CASE OF SVINARENKO AND SLYADNEV v. RUSSIA (Applications nos /08 and 43441/08) JUDGMENT STRASBOURG 17 July 2014 This judgment is final but may be subject to editorial revision.

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3 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT 1 In the case of Svinarenko and Slyadnev v. Russia, The European Court of Human Rights, sitting as a Grand Chamber composed of: Dean Spielmann, President, Josep Casadevall, Guido Raimondi, Ineta Ziemele, Mark Villiger, Peer Lorenzen, Boštjan M. Zupančič, Danutė Jočienė, Ján Šikuta, George Nicolaou, Luis López Guerra, Vincent A. de Gaetano, Linos-Alexandre Sicilianos, Helen Keller, Helena Jäderblom, Johannes Silvis, Dmitry Dedov, judges, and Michael O Boyle, Deputy Registrar, Having deliberated in private on 18 September 2013 and on 11 June 2014, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in two applications (nos /08 and 43441/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( the Convention ) by two Russian nationals, Mr Aleksandr Sergeyevich Svinarenko and Mr Valentin Alekseyevich Slyadnev ( the applicants ), on 5 May 2008 and 2 July 2008 respectively. 2. The applicants alleged, in particular, that keeping them in a metal cage in a courtroom had amounted to degrading treatment prohibited by Article 3 of the Convention and that the length of the criminal proceedings against them had been excessive, in breach of Article 6 1 of the Convention. 3. The applications were allocated to the First Section of the Court (Rule 52 1 of the Rules of Court). On 11 December 2012 a Chamber of that Section delivered its judgment. The Chamber decided to join the

4 2 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT applications (Rule 42 1), declared the complaints concerning the applicants placement in a metal cage and the length of the proceedings against them admissible and the remainder of the applications inadmissible, and found unanimously that there had been violations of Articles 3 and 6 1 of the Convention. The Chamber was composed of the following judges: Isabelle Berro-Lefèvre, President, Elisabeth Steiner, Nina Vajić, Anatoly Kovler, Khanlar Hajiyev, Mirjana Lazarova Trajkovska and Julia Laffranque, and also of André Wampach, Deputy Section Registrar. On 7 March 2013 the Government of the Russian Federation ( the Government ) requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention, and the Panel of the Grand Chamber accepted that request on 29 April The composition of the Grand Chamber was determined according to the provisions of Article 26 4 and 5 of the Convention and Rule The applicants and the Government each filed further written observations (Rule 59 1) on the merits. 6. A hearing took place in public in the Human Rights Building, Strasbourg, on 18 September 2013 (Rule 59 3). There appeared before the Court: (a) for the Government Mr G. MATYUSHKIN, Representative of the Russian Federation at the European Court of Human Rights, Agent, Mr N. MIKHAYLOV, Mr P. SMIRNOV, Ms O. OCHERETYANAYA, Advisers; (b) for the applicants Mr V. PALCHINSKII, representative of Mr Svinarenko, Mr E. PLOTNIKOV, Ms V. TAYSAEVA, representatives of Mr Slyadnev. Counsel, Counsel. The Court heard addresses by Mr Palchinskii, Mr Plotnikov, Ms Taysaeva and Mr Matyushkin.

5 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT 3 THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicants were born in 1968 and 1970 respectively. The first applicant, Mr Svinarenko, is currently serving a sentence of imprisonment in the Murmansk region. The second applicant, Mr Slyadnev, lives in the settlement of Sinegorye in the Yagodninskiy district of the Magadan region. A. Preliminary investigation 8. In 2002 the Far Eastern Federal Circuit Investigation Department of the Investigation Committee at the Ministry of the Interior brought several sets of criminal proceedings against a Mr Grishin. 9. On 24 September 2002 the first applicant was questioned as one of the suspects in those proceedings. On 9 October 2002 he was arrested. In a decision of 12 November 2002 ordering his detention on remand, the Magadan Town Court noted that the crimes he was charged with had been committed during a three-year probation period under a judgment of the Magadan Region Yagodninskiy District Court of 13 April 2001 convicting him of theft and imposing on him a conditional sentence of five years imprisonment. It also noted that he had negative references from his place of residence and that he had breached his undertaking to appear before the investigating authority. According to the final charges against the first applicant, he was accused of robbery with violence against Mr A.S. and Mrs T.S. in September 2002 as a member of a gang led by Mr Grishin, and of the illegal acquisition, storage, transportation and carrying of ammunition. 10. On 20 January 2003 the second applicant, who was serving a sentence of imprisonment after his conviction by the Magadan Region Yagodninskiy District Court on 26 July 2002 for negligent infliction of death under Article of the Criminal Code of the Russian Federation ( the CC ), was questioned as one of the suspects in the proceedings brought against Mr Grishin. On 22 January 2003 he was charged with the following crimes: (i) establishing an armed gang under Mr Grishin s leadership and participating in the gang s attacks on citizens from October 2001 to September 2002 under Article of the CC; (ii) the robbery in October 2001 of Mr V.B., the director of a private gold-refining company, with the use of weapons and violence endangering life and health and a threat to use such violence, by an organised group, with the aim of misappropriating another s property of substantial value under Article of the CC;

6 4 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT (iii) illegal storage and transportation of precious metals (industrial gold allegedly misappropriated from Mr V.B.) of substantial value by an organised group in October 2001 under Article of the CC; (iv) extortion (against Mr V.B.) in October 2001 with the aim of obtaining a right to property under the threat of the use of violence, by an organised group under Article of the CC; (v) the robbery of Mr Ya.B. in October 2001 with the use of weapons and violence endangering life and health and the threat to use such violence, by a group of persons according to a premeditated plan, by means of illegal entry into a dwelling with the aim of misappropriating another s property of substantial value under Article of the CC; and (vi) illegal acquisition, storage, transfer, transportation and carrying of firearms by an organised group in October 2001 under Article of the CC. 11. On 11 April 2003 the Magadan Region Khasynskiy District Court found the second applicant to be eligible, in view of his orderly behaviour and positive references, for early conditional release one year and three months ahead of the term of two years and three months to which he had been sentenced under the Yagodninskiy District Court s judgment of 26 July On 24 April 2003 the Magadan Town Court ordered the second applicant s remand in custody in the criminal proceedings at issue in the present case. It noted, inter alia, that he was accused of grave crimes which had been committed during a three-year probation period under the Yagodninskiy District Court s judgment of 15 June 2001 convicting him of hooliganism and wilful infliction of grievous bodily harm and sentencing him conditionally to four years imprisonment. 13. On 20 May 2003 the investigation was completed and the defence received access to the case file. 14. On 13 August 2003 the Magadan Town Court found that the second applicant had been deliberately delaying the examination of the case file and set a time-limit for the examination at 5 September B. Trial proceedings 1. First trial 15. On 19 September 2003 the case was sent for trial to the Magadan Regional Court, which held from 16 October to 26 December 2003 a preliminary hearing to decide on numerous requests by the applicants and their two co-defendants concerning the admissibility of the evidence and other procedural issues, as well as to prepare the jury trial requested by the defendants. During this period the hearing was postponed for about four weeks at the co-defendants request.

7 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT As a result of the preliminary hearing, on 26 December 2003 the Regional Court ordered that the case be examined at an open hearing by a jury on 23 January On that day fewer than twenty candidate jurors appeared before the court instead of the fifty invited and the court, therefore, ordered that another 100 candidate jurors be summoned. 17. On 13 February 2004 a jury was empanelled and sworn in. 18. The Regional Court held about thirty court sessions, during which it decided various procedural issues, such as the replacement of some jurors, the exclusion or examination of certain evidence and the ordering of expert opinions. It examined the evidence, including the testimony of the victims, witnesses and experts, and heard the defendants. The hearing was adjourned for two weeks as one of the defence lawyers could not attend. 19. On 15 June 2004 the prosecution amended one of the robbery charges against the second applicant (concerning Mr Ya.B.) to the lesser charge of arbitrary unlawful acts (самоуправство) with the use of violence, under Article of the CC. 20. On 22 June 2004 the jury found the applicants not guilty. They were released in the courtroom. On 29 June 2004 the Magadan Regional Court delivered a judgment in which they were acquitted and their right to rehabilitation was acknowledged. 21. The co-defendants and the prosecution appealed against the trial court s judgment. On 7 December 2004 the Supreme Court of the Russian Federation examined the case on appeal and quashed the judgment on the grounds, inter alia, that some of the jurors had concealed information about their family members criminal records although they had been obliged to disclose such information to the parties and to the court at the time of their selection; and that the presiding judge had failed to sum up all the evidence in his directions to the jury, in particular failing to sum up the victims and witnesses statements. The Supreme Court remitted the case to the Magadan Regional Court for fresh examination. 2. Second trial 22. On 21 December 2004 the Regional Court received the case file. It adjourned its hearing twice, on 31 January and 7 February 2005, as the second applicant s lawyer had failed to appear. 23. In a decision of 8 February 2005 the Regional Court imposed on the defendants an undertaking not to leave their place of residence without its authorisation, to appear before it when summoned, and not to obstruct the proceedings. 24. The Regional Court s decision of the same date to remit the case to the Magadan Regional Prosecutor for the rectification of errors in the indictment was appealed against by the defence and quashed as erroneous by the Supreme Court on 26 April 2005.

8 6 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT 25. The hearing before the Regional Court was adjourned on 17 June 2005 as a result of the first applicant s and a co-defendant s failure to appear, for unknown reasons. It was adjourned again on 21 June 2005 owing to a co-defendant s hospitalisation and the impossibility of examining the case in respect of the others in separate proceedings. 26. The hearing resumed on 22 November On that day, however, fewer than twenty candidate jurors appeared before the court instead of the thirty invited and the court, therefore, ordered that another 100 candidate jurors be summoned. 27. On 6 December 2005 the Regional Court ordered that the applicants and the other two defendants be detained on remand. It noted the applicants previous convictions, the serious charges against them, and the fact that during the preliminary investigation and the current trial some of the victims and witnesses had expressed fears of unlawful behaviour by the defendants. In its decision it did not give any details concerning the fears referred to, or the names of the defendants concerned. The applicants appeals against the detention order were dismissed by the Supreme Court of the Russian Federation in its decision of 22 February In upholding the Regional Court s detention order, the Supreme Court noted that one of the victims, Mr Ya.B., had asked for the case to be examined without his participation as he had been afraid to give evidence in open court. This fear constituted, according to the Supreme Court, a sufficient ground to consider that the defendants did not satisfy the condition of not obstructing the proceedings in order for them to remain free under the previously imposed undertaking not to leave their place of residence. The applicants detention was subsequently extended for similar reasons. 28. On 9 December 2005 the jury was empanelled and sworn in and the court held hearings on 12, 20 and 23 December On the last-mentioned date one of the co-defendants was granted leave to engage a new lawyer. On 27 December his new lawyer failed to appear and the hearing was adjourned until 10 January 2006, 1-9 January being non-working days. The Regional Court continued the examination of the case in January. It ruled on numerous procedural requests by the defence, in particular requests seeking the replacement of the presiding judge and the prosecutor. 29. As the witnesses and victims who lived in Sinegorye had failed to appear at the hearings several times, on 17 January the court ordered them to be brought before it under escort. The hearing was adjourned on 20 January until 27 January and on 26 February until 10 March 2006, pending the execution of that order. 30. The examination of the case continued in February, March, April and May During this time the hearing was adjourned on a number of occasions for about four weeks in total at the request of jurors who could not participate, and for about a week at the request of one of the defence lawyers, who was ill. On 2 June 2006 the presiding judge declared the

9 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT 7 examination of the evidence closed. In five sessions in June 2006 the Regional Court heard the parties oral argument. It announced a break from 14 July until 3 October 2006 in view of the fact that several jurors were leaving for their summer holidays in central Russia. 31. The hearing resumed on 3 October Having consulted the parties, the court decided that they would repeat their oral argument. They did so on 6, 12 and 19 October and 2 November The preparation of questions to be put to the jury then followed. The jury gave its verdict on 17 November The first applicant was found not guilty and was released in the courtroom. 32. On 5 December 2006, after an examination of the legal issues during the sessions held in November and December, the Regional Court delivered its judgment. The first applicant was acquitted and his right to rehabilitation was acknowledged. The second applicant was convicted of extortion (against Mr V.B.), and arbitrary unlawful acts with the use of violence (in respect of Mr Ya.B.), and was sentenced to seven years imprisonment (which took into account his 2001 conviction, in respect of which the conditional sentence was revoked). He was acquitted on the remaining charges. His detention on remand was to continue until the judgment took effect. 33. On 6 June 2007 the Supreme Court examined the appeals against the judgment lodged by a co-defendant, one of the victims and the prosecution. It found that the defendants and their lawyers had breached the rules on criminal trials by committing an abuse of their rights, namely, by discussing in the jurors presence, despite the presiding judge s warnings, issues which fell outside the scope of the jurors competence. They had also made remarks which did not concern the issues to be decided by the jury and which had been aimed at discrediting the evidence against them, thus creating a negative impression of the victims and the presiding judge, and a positive one of themselves. This was held by the Supreme Court to have unlawfully influenced the jury s verdict. It was also noted that the jury s verdict had not been entirely clear as some of the answers to the questions put to them had been contradictory. The Supreme Court quashed the judgment and remitted the case to the Regional Court for a fresh examination. It also ordered that the second applicant remain in custody. 34. In August 2007 the first applicant was detained on remand in connection with an unrelated set of criminal proceedings brought against him on suspicion of an extortion allegedly committed in Third trial 35. On 4 September 2007 the Magadan Regional Court received the case file and opened the proceedings. On 5 October 2007 fewer than twenty candidate jurors appeared before the Regional Court instead of the

10 8 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT 100 invited and the court, therefore, ordered that another 150 candidate jurors be summoned. 36. On 2 November 2007 the selection of the jurors began. However, after a number of candidate jurors refused to sit in the case, the number available was still insufficient and the court ordered that another 150 candidate jurors be summoned. The same situation occurred on 22 November The number of candidate jurors who appeared before the Regional Court was again insufficient on 11 December 2007 and 17 January 2008, necessitating the summoning of an additional 200 and 250 persons respectively. 38. A jury, composed of twelve jurors and two substitute jurors, was empanelled on 5 February 2008 from thirty-four candidate jurors who had appeared before the court, and the trial commenced. The court held five or six sessions monthly from February to June 2008, two sessions in July, four in August (after a break for the jurors holidays from 1 July to 18 August), eleven in September, six in October, ten in November and four in December Some of the sessions were held without the jury as they concerned various procedural issues, including the admissibility of evidence and requests for the examination of the evidence before the jury. The court examined the vast body of evidence, including the testimony of more than seventy victims and witnesses, and numerous expert reports. 39. For about a month the trial was delayed because a co-defendant was ill. Some delay was caused by difficulties in ensuring the appearance of some of the victims and witnesses, who resided in remote settlements in Burkhala and Sinegorye, or who had moved to the central and other parts of the country. 40. On 13 February 2009 the Regional Court started hearing the parties oral argument. 41. On 7 March 2009 the jury returned a not guilty verdict in respect of the first applicant. It found the second applicant guilty of arbitrary unlawful acts and not guilty on the remaining charges. 42. On 12 March 2009 the Regional Court ordered the second applicant s release on an undertaking not to leave his place of residence and to behave in a law-abiding manner. 43. On 19 March 2009 it delivered its judgment, acquitting the first applicant and finding, in respect of the second applicant, that on 11 October 2001 he, Mr Grishin and Mr N.G. (against whom the criminal proceedings were terminated owing to his death) had requested Mr Ya.B. to repay a debt in the amount of 100,000 Russian roubles (RUB); following Mr Ya.B. s refusal Mr Grishin and Mr N.G. had beaten him up; the second applicant had beaten up Mr S.K., who had witnessed Mr Ya.B. s beating; they had then taken Mr Ya.B. to his home and Mr Grishin had taken money from him in the amount of RUB 247,000.

11 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT The Regional Court noted that there had been mixed references in the materials of the case about the second applicant, who had been characterised negatively by the local authority and by a district police officer at the place of his residence, and positively by the administration of a detention facility, in which he had been detained on remand, and by the administration of a prison in which he had served his sentence after a previous conviction. 45. The Regional Court convicted the second applicant, under Article of the CC, of arbitrary unlawful acts with the use of violence, sentenced him to two years and ten months imprisonment, revoked the conditional sentence under his 2001 conviction as the new crime had been committed during the probation period, and, after adding the revoked conditional sentence, sentenced him to a total of four years and five months imprisonment; it discharged him from serving the sentence in the part relating to the conviction under Article as liability for the relevant offence had become time-barred, and found that he had served his sentence in the remaining part in view of his detention on remand from 24 April 2003 to 22 June 2004 and from 6 December 2005 to 12 March 2009, which amounted to four years, five months and six days in total. It acquitted him on the remaining charges. 46. As of 19 March 2009 the first applicant was still detained in connection with unrelated criminal proceedings against him (see paragraph 34 above). 47. On 23 July 2009 the Supreme Court dismissed an appeal by a co-defendant and the prosecution and upheld the judgment. C. Conditions in the courtroom 48. During the applicants detention on remand they were taken to the Magadan Regional Court from their detention facility by police guards. During the hearings they sat on a bench enclosed on four sides by metal rods 10 millimetres in diameter. The enclosure was 255 centimetres long, 150 centimetres wide and 225 centimetres high, with a steel mesh ceiling and a door, also made of metal rods. The distance between the metal rods was 19 centimetres. 49. Armed police guards remained beside the caged dock. There were always two police guards per detainee eight police guards in total during the first and second trials and six police guards for the applicants and one of their co-defendants during the third trial.

12 10 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT D. Compensation proceedings 50. After the first applicant s acquittal had become final he brought proceedings against the State for damage suffered as a result of the criminal proceedings against him. 51. On 23 October 2009 the Magadan Regional Court awarded him RUB 18,569 in respect of pecuniary damage, representing an unemployment allowance that had not been paid as a result of his detention on remand. On 17 December 2009 the Supreme Court of the Russian Federation upheld the Regional Court s judgment. 52. On 1 March 2010 the Magadan Town Court awarded the first applicant RUB 50,000 in respect of non-pecuniary damage incurred by him as a result of his criminal prosecution, the imposition on him of an undertaking not to leave his place of residence and his detention on remand from 9 October 2002 to the moment of his release, following the first not guilty jury verdict of 22 June 2004 and from 6 December 2005 until 17 November The applicant appealed against the judgment arguing, inter alia, that the amount awarded to him was not just or reasonable. On 30 March 2010 the Magadan Regional Court dismissed the applicant s appeal and upheld the Town Court s judgment. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Prohibition of degrading treatment 53. Article 21 of the Constitution of the Russian Federation reads, in the relevant part, as follows: 1. Human dignity shall be protected by the State. Nothing may serve as a basis for derogation therefrom. 2. No one shall be subjected to torture, violence or other severe or degrading treatment or punishment Article 9 of the Code of Criminal Procedure of the Russian Federation prohibits, inter alia, the degrading treatment of participants in criminal proceedings. B. Metal cages in courtrooms 1. Circular of the Ministry of Justice, the Supreme Court and the Ministry of the Interior 55. An unpublished circular of 3 February 1993 issued jointly by the Ministry of Justice of the Russian Federation (no ), the Supreme Court of the Russian Federation (no. 11-nk/7) and the Ministry of the

13 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT 11 Interior of the Russian Federation (no. 1/483) contained proposals on creating the proper conditions for courts examination of criminal cases and the safety of trial participants and the guards of the internal troops and police escorts in the performance of their duties. It directed the presidents of courts of general jurisdiction to ensure, before 1 January 1994, the fitting of all the courtrooms with special fixed metal barriers separating defendants in criminal cases from the court bench and the visitors attending the hearing. It also instructed prisoner escort officers to place behind those barriers any defendants who were in custody. 2. Orders of the Ministry of the Interior (a) Order of The Directions on Guarding and Transferring Suspects and Accused, pre-approved by the Supreme Court of the Russian Federation, the Ministry of Justice and the Prosecutor General s Office, and approved by the Ministry of the Interior of the Russian Federation on 26 January 1996 by Order no. 41 (dsp) for internal use only, provided for the placement of defendants behind the metal barrier in a courtroom. (b) Order of A similar provision was included in the Directions on the Functioning of Temporary Detention Centres and Units for Guarding and Transferring Suspects and Accused, pre-approved by the Courts Administration Office at the Supreme Court of the Russian Federation on 8 February 2006 (no. CD-AG/269) and the Prosecutor General s Office of the Russian Federation on 16 February 2006 (no ), and approved on 7 March 2006 by order no. 140 (dsp) for internal use only of the Ministry of the Interior of the Russian Federation. Under the latter Directions, the transfer of suspects and accused to courtrooms which are not equipped with the safety barrier (защитное ограждение, барьер) is prohibited. (c) The Supreme Court s review of the orders 58. Order no. 41 was challenged before the Supreme Court of the Russian Federation by a Mr Sh. on the ground that its provision on keeping defendants behind the metal barrier during their trials violated domestic law and the Convention in so far as both prohibited degrading treatment and guaranteed the right to a fair trial. He complained that he had actually been kept in a metal cage in a courtroom during his trial, and that it had made it impossible for him to communicate with his lawyer. 59. In its decision of 19 October 2004 the Supreme Court, in a single judge formation, noted that the impugned provision concerned persons detained on remand by a court decision in accordance with the requirements

14 12 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT of the Code of Criminal Procedure; and that it was the responsibility of the police to guard and transfer them to a courthouse from their detention facilities (Article of the Police Act). The court reiterated that detention on remand was to be carried out in accordance with the principles of legality, fairness, presumption of innocence, equality before the law, humanism, and respect for human dignity, and in accordance with the Constitution, the principles and norms of international law, and the international agreements of the Russian Federation; furthermore such detention could not be accompanied by torture or other acts aimed at the infliction of physical or moral suffering (the Federal Law on the Detention of Suspects and Defendants). In view of the above, the Supreme Court was satisfied that the provision of the order for keeping defendants behind a metal barrier could not be regarded as impugning human honour and dignity or as violating the right to a fair trial. 60. Mr Sh. appealed against the Supreme Court s decision arguing, inter alia, that the decision had not been accompanied by reasons. On 23 December 2004 the appeals division of the Supreme Court in a three-judge formation dismissed his appeal and fully endorsed the findings at first instance. It noted that the disputed order had not set out the characteristics of the metal barrier. 61. Applications challenging the legality of both orders (that of 1996 and that of 2006, see paragraphs 56 and 57 above) on the basis of their lack of official publication were dismissed by the Supreme Court of the Russian Federation, which stated that the orders should not be published as they contained confidential information and had been registered with the Ministry of Justice (decision of 2 December 2002, as upheld by the appeals division of the Supreme Court on 24 April 2003 in respect of order no. 41, and decision of 7 December 2011 in respect of order no. 140). 3. Construction rules (a) The Rules at the time of the applicants trial 62. On 2 December 1999 the Courts Administration Office at the Supreme Court of the Russian Federation approved, by order no. 154, the Rules on the Design and Construction of Courthouses for Courts of General Jurisdiction (SP ). The Rules were further approved by the Federal State Committee for Construction, Housing and Communal Services, and came into force on 1 August They were prepared by a group of experts including the President of the Supreme Court of the Russian Federation, the General Director of the Courts Administration Office at the Supreme Court of the Russian Federation and members of the Council of Judges of the Russian Federation. The Rules took account of the proposals set out in the joint circular of the Ministry of Justice, the Supreme

15 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT 13 Court and the Ministry of the Interior of 3 February 1993 (see paragraph 55 above). 63. The Rules provided for a sub-zone for defendants in courtrooms for hearing criminal cases, enclosed on four sides with metal bars (металлическая заградительная решетка), consisting of metal rods of not less than 14 millimetres in diameter, 220 centimetres high with a steel-wire ceiling or extending up to the ceiling of the courtroom, and containing a door (paragraphs 5.4, 5.9 and 8.3 of the Rules). 64. Among other security arrangements the Rules provided for access from the defendants cells in the courthouse to the courtroom through separate corridors and stairs and a separate entry to the courtroom. The public entrance to the courthouse and to the courtroom for hearing criminal cases had to provide for the installation of metal detectors. Metal bars had to be installed on the windows in the courtroom (paragraphs 5.11, 5.35, 8.1 and 8.2 of the Rules). (b) The new Rules 65. Since 1 July 2013 the design and layout of courthouses for courts of general jurisdiction has been regulated by Rules prepared by a group of experts from the Courts Administration Office at the Supreme Court of the Russian Federation, architectural and construction organisations, and approved by the Federal Agency for Construction, Housing and Communal Services on 25 December The new Rules provide for two types of safety cabins (защитные кабины) in courtrooms for persons in custody, notably a safety cabin made of metal bars with characteristics identical to those in the old Rules (see paragraph 63 above) and an isolating transparent safety cabin made of a steel carcass and bulletproof glass walls. Both cabins should be equipped with doors lockable from outside. C. Detention on remand 67. Under the general provision in Article 108 of the Code of Criminal Procedure of the Russian Federation, detention on remand could be ordered by a court in respect of persons suspected or accused of having committed a criminal offence punishable by more than two years imprisonment (three years imprisonment since December 2012), provided that a less restrictive preventive measure, such as, for example, an undertaking not to leave one s place of residence, personal surety or bail, could not be applied. Persons suspected or accused of having committed a criminal offence punishable by lesser terms of imprisonment could still be remanded in custody in exceptional circumstances, notably if they had no permanent place of residence, their identity had not been established, or they had breached a previously imposed preventive measure or absconded.

16 14 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT 68. A court was required to consider whether there were sufficient grounds to believe that the accused might abscond, reoffend or obstruct the proceedings (ibid., Article 97). Other circumstances, such as the seriousness of the charge, the accused s personality, his age, state of health, family status and occupation, also had to be taken into account (ibid., Article 99). 69. As a result of amendments to the Code of Criminal Procedure between December 2009 and November 2012, persons suspected or accused of some non-violent crimes against property and in the sphere of economic activity can no longer be detained on remand. III. RELEVANT INTERNATIONAL MATERIALS AND PRACTICE A. The United Nations Human Rights Committee 70. At its meeting on 20 March 2014, after consideration of communication No. 1405/2005, submitted by Mikhail Pustovoit against Ukraine, the UN Human Rights Committee adopted the Views that Mr Pustovoit s placement in a metal cage during his public trial, with his hands handcuffed behind his back, had violated Article 7 of the International Covenant on Civil and Political Rights taken separately, on account of the degrading treatment thereby inflicted on him, and in conjunction with Article 14 (1) of the Covenant, on account of the degrading treatment which had affected the fairness of his trial (paragraphs 9.3 and 10 of the Views). B. The United Nations Standard Minimum Rules for the Treatment of Prisoners 71. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955 and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, include the following guiding principle concerning instruments of restraint: 33. Instruments of restraint, such as handcuffs, chains, irons and strait-jackets, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints. Other instruments of restraint shall not be used except in the following circumstances: (a) As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority;...

17 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT 15 C. International criminal tribunals 72. The Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (Rule 83) and of the International Criminal Tribunal for Rwanda (Rule 83) provide that instruments of restraint, such as handcuffs, may be used only as a precaution against escape during transfer or for security reasons; however, once the accused appears before the court, instruments of restraint shall be removed. 73. Article 63 of the Rome Statute of the International Criminal Court provides as follows: 1. The accused shall be present during the trial. 2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required. D. Amnesty International 74. The Amnesty International Fair Trials Manual states as follows: 15.3 Procedures impinging on the presumption of innocence... Particular attention should be paid that no attributes of guilt are borne by the accused during the trial which might impact on the presumption of their innocence. Such attributes could include holding the accused in a cell within the courtroom... E. Use of a metal cage in courtrooms in the member States of the Council of Europe 75. A metal cage has been used as a standard security measure in respect of suspects and accused appearing before a court while in custody in some member States of the Council of Europe, such as Armenia, Azerbaijan, Georgia, Moldova and Ukraine. Armenia and Georgia have abandoned its use (see Ashot Harutyunyan v. Armenia, no /04, 118, 15 June 2010, and the Council of Europe Committee of Ministers Resolution CM/ResDH(2011)105). Moldova and Ukraine are in the process of doing so (see, in respect of Ukraine, the Transitional Provisions of the 2012 Code of Criminal Procedure of Ukraine, notably paragraph 21 of Section XI, which directed the Cabinet of Ministers to submit proposals to parliament to secure funding for replacement of the metal screen cages in courtrooms with glass or organic glass screens ). In Azerbaijan, while in some courts metal cages have been replaced by glass barriers (see, for example, Section 3 Developments in the Justice Sector of the

18 16 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT Organization for Security and Co-operation in Europe 2011 Trial Monitoring Report on Azerbaijan), their continued use is provided for by the Instruction of the Ministry of Justice of Azerbaijan of 29 December 2012 on the Procedures for Escorting Arrested and Convicted Persons and the Instruction of the Ministry of Internal Affairs of Azerbaijan of 14 January 2013 on the Procedures for the Guarding and Escorting by the Police of Persons Kept in Temporary Detention Facilities. 76. Some other member States use cages for security reasons in certain circumstances or in certain courts. For example, in the Serious Crimes Court in Albania the accused may be placed in a dock enclosed by metal bars. There is one courtroom in Serbia in the District (Central) Prison in Belgrade as an auxiliary courtroom of the High Court in Belgrade, in which the dock is enclosed by metal bars and bulletproof glass. In France, some courts use glass docks, which in rare cases are reinforced with steel cables and used pursuant to a decision by the presiding judge of the court. In Latvia, although a minority of tribunals still have metal cages, that practice is falling into disuse. In Italy, metal cages installed in the 1980s for trials of alleged mafia or terrorist group members are no longer used. THE LAW I. THE GOVERNMENT S PRELIMINARY OBJECTION 77. In their submissions before the Grand Chamber the Government argued that the first applicant could not claim to be a victim of the alleged violations of Article 3 (on account of his placement in a metal cage in the courtroom) and of Article 6 (on account of the length of the criminal proceedings against him) since he had been fully acquitted and awarded compensation in subsequent rehabilitation proceedings (see paragraphs above). 78. The applicant disagreed, noting, in particular, the small amount of compensation and the lack of its connection with the length of the proceedings. He emphasised that a federal law of 30 April 2010, which introduced the possibility of obtaining compensation for a violation of the right to a hearing within a reasonable time, had come into force after the rehabilitation proceedings. 79. The Grand Chamber is not precluded from examining, where appropriate, questions concerning the admissibility of an application under Article 35 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible at any stage of the proceedings (see Odièvre v. France [GC], no /98, 22, ECHR 2003-III). However, pursuant to Rule 55 of the Rules of Court, any plea of

19 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT 17 inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted as provided in Rule 51 or 54, as the case may be. Where, in the course of the proceedings before the Court, a new legally relevant procedural event occurs which may influence the admissibility of the application, it is in the interests of the proper administration of justice that the Contracting Party should make any formal objection without delay (see, mutatis mutandis, N.C. v. Italy [GC], no /94, 45, ECHR 2002-X, and Lebedev v. Russia, no. 4493/04, 39-40, 25 October 2007). 80. In the present case, no such plea of inadmissibility had been made by the Government in their observations before the Chamber took its decision as to the admissibility of the application. The Government submitted their observations on the admissibility of the application on 18 February The rehabilitation proceedings came to an end on 30 March 2010 (see paragraph 52 above). There was nothing to prevent the Government from raising their plea of inadmissibility, prompted by the outcome of the rehabilitation proceedings, before the Chamber, which ruled on the admissibility and merits of the application more than two years and eight months later on 11 December Furthermore, in his letter of 10 February 2011, received by the Court on 2 March 2011, the first applicant informed the Court of the outcome of the rehabilitation proceedings and enclosed a copy of the relevant court judgments. The President of the Section decided, pursuant to Rule 38 1 of the Rules of Court, that the applicant s submissions should be included in the case file for the consideration of the Court, and transmitted them to the Government for information on 10 March 2011, well before the Chamber s examination of the admissibility of the application. 82. In the absence of any exceptional circumstances that could have dispensed the Government from raising this objection in a timely manner, the Court holds that the Government are estopped from raising their preliminary objection concerning the first applicant s victim status (see Sejdovic v. Italy [GC], no /00, 41, ECHR 2006-II; Prokopovich v. Russia, no /00, 29, ECHR 2004-XI (extracts); and Andrejeva v. Latvia [GC], no /00, 49, ECHR 2009). 83. The Government s preliminary objection must therefore be rejected. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 84. The applicants complained about their confinement in a metal cage in the courtroom before their trial court. They alleged that such confinement amounted to degrading treatment prohibited by Article 3 of the Convention, which provides as follows:

20 18 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT No one shall be subjected to torture or to inhuman or degrading treatment or punishment. A. The six-month rule and the scope of the Court s examination 85. The Court observes that the Government did not raise the issue of the applicants compliance with the six-month rule either before the Chamber or before the Grand Chamber. The Chamber did not examine that issue in its judgment either but declared the applicants complaint about their confinement in a cage admissible and found in the light of the circumstances pertaining to the third trial a violation of Article 3. Having jurisdiction to apply the six-month rule of its own motion (see Sabri Güneş v. Turkey [GC], no /06, 29, 29 June 2012), the Court considers it appropriate to address this issue in the present case. 86. The Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others v. Turkey [GC], nos /90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, 157, ECHR 2009). Where the alleged violation constitutes a continuing situation against which no domestic remedy is available, the six-month period starts to run from the end of the continuing situation (see Ülke v. Turkey (dec.), no /98, 1 June 2004). As long as the situation continues, the six-month rule is not applicable (see Iordache v. Romania, no. 6817/02, 50, 14 October 2008). The concept of a continuing situation refers to a state of affairs which operates by continuous activities by or on the part of the State to render the applicant a victim (see Petkov and Others v. Bulgaria (dec.), nos /01, 178/02 and 505/02, 4 December 2007). The Court found previously that in the situation of a repetition of the same events, such as, for example, an applicant s transport between the remand prison and the courthouse, even though the applicant was transported on specific days rather than continuously, the absence of any marked variation in the conditions of transport to which he had been routinely subjected created, in the Court s view, a continuing situation which brought the entire period complained of within the Court s competence (see Fetisov and Others v. Russia, nos /07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, 75, 17 January 2012). The same is true where applicants in custody, as in the present case, are routinely confined in a metal cage in the courtroom each time they are brought from their detention facility to the courthouse for examination of their case.

21 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT The Court notes that the applicants did not raise their complaint before any domestic authority, alleging that confinement in a metal cage in the courtroom was a standard practice applicable to each and every suspect or accused detained on remand, an allegation that has not been disputed by the Government. The applicants, who have implied that as a consequence of that situation there were no domestic remedies to be exhausted, ought therefore to have lodged their applications with the Court no later than six months from the cessation of the situation complained of, in order to comply with the six-month rule. By lodging their applications on 5 May 2008 and 2 July 2008, respectively, at the time when the third trial was pending, the applicants complied with that rule in relation to their confinement in a cage during the third trial only. The Court will therefore disregard their confinement in a cage during the first and second trials which ended in 2004 and 2006 more than six months before the dates on which the applications were introduced as falling outside the scope of its examination (see, mutatis mutandis, Cyprus v. Turkey [GC], no /94, 104, ECHR 2001-IV). B. The parties submissions to the Grand Chamber 1. The Government 88. The Government submitted that in the Soviet Union a dock for a criminal defendant in a courtroom resembled a rostrum. A metal grid was first used during the trial of notorious serial killer A. Chikatilo in 1992 in order to protect the defendant from the relatives of his many victims. 89. The metal barriers in courtrooms had been introduced in Russia in 1994, in accordance with a joint circular of 3 February 1993 issued by the Ministry of Justice of the Russian Federation, the Supreme Court of the Russian Federation and the Ministry of the Interior of the Russian Federation (see paragraph 55 above), as a response to a crime wave in the aftermath of the break-up of the Soviet Union and at the time of the reorganisation of the State system. The measure had pursued the purpose of preventing defendants in criminal proceedings from absconding or attacking escort officers, judges, witnesses and victims, since the number of such incidents had risen, as well as ensuring the safety of visitors in courtrooms. 90. According to the official statistics of the Ministry of the Interior of the Russian Federation, the Ministry of Justice of the Russian Federation and the CIS (Community of Independent States) Statistical Committee, the crime rate in Russia and the CIS in 1992, compared to the previous year, was up 27% and 24%, respectively. In the same period in Russia the number of grave crimes increased by more than 30%, crimes committed by a group by 30% and robberies by 66%. In 1994 the total number of persons

22 20 SVINARENKO AND SLYADNEV v. RUSSIA JUDGMENT convicted by final judgments was up 16.7% on the previous year and totalled 924, The Government argued that, although the situation had since improved, the use of security barriers remained justified as a means to prevent escapes, to allow judges and prosecutors not to be distracted from their primary duties, to allow victims, witnesses and other participants in proceedings to feel more secure, and to ensure that defendants were protected from the rage of their victims. In addition, defendants were not restricted in their movements by wrist or ankle shackles and were free to take more comfortable postures. The Government stated that preventing any escape attempt on the part of a defendant in custody was safer than arresting him after escape. They submitted that there were no international instruments which prohibited the placement of detained defendants behind security barriers in courtrooms or which set requirements for the use of such barriers. 92. According to statistical material of the Ministry of the Interior of the Russian Federation, during the period from 2009 to 2013 the total number of escapes from courtrooms in Russia was 0, 4, 5, 2 and 3 per year, respectively; the total number of attacks by suspects and accused in custody on State agents in courtrooms was 1, 1, 7, 0 and 7 per year, respectively; and the total number of incidents of self-mutilation by persons in custody in courtrooms was 4, 14, 20, 16 and 18 per year, respectively. The Government submitted that those numbers would have been higher had suspects and defendants in custody not been held behind the security barriers. 93. The Government submitted that placement behind the security barrier was used in respect of all suspects and accused detained on remand. However, the procedure for the imposition and extension of detention on remand served as a guarantee against arbitrariness and indiscriminate use of the security measure in question. They referred to the domestic legal framework for detention on remand, which was meant to be an extraordinary preventive measure to be ordered as a result of the assessment by a judicial authority of individual circumstances showing the existence of a danger of absconding, reoffending or obstructing the administration of justice, and only in respect of persons suspected or accused of having committed the most serious crimes and posing significant danger to society (see paragraphs above). 94. According to the annual statistical reports of the Courts Administration Office at the Supreme Court of the Russian Federation, the percentage of defendants detained on remand out of the total number of defendants on trial before first-instance courts fell from 17.7% or 241,111 persons in 2007 (excluding military courts) to 12.8% or 134,937 persons in 2012.